VACATING DEFAULT AND HEARING ON IMPROPER SERVICE

U.S. Bank N.A. v Giraldo, 2021 NY Slip Op 01282, Decided on March 3, 2021, Appellate Division, Second Department:

""When a defendant seeking to vacate a default judgment raises a jurisdictional objection pursuant to CPLR 5015(a)(4), the court is required to resolve the jurisdictional question before determining whether it is appropriate to grant a discretionary vacatur of the defendant under CPLR 5015(a)(1)" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d 896, 897 [internal quotation marks omitted]; see Wells Fargo Bank, NA v Spaulding, 177 AD3d 817, 818; Roberts v Anka, 45 AD3d 752, 753). "'The burden of proving that personal jurisdiction has been acquired over a defendant in an action rests with the plaintiff'" (Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897, quoting Wells Fargo Bank, NA v Chaplin, 65 AD3d 588, 589).

"Service of process upon a natural person must be made in strict compliance with the statutory methods of service set forth in CPLR 308, and [a] defect in service is not cured by the defendant's subsequent receipt of actual notice of the commencement of the action" (Wells Fargo Bank, NA v Spaulding, 177 AD3d at 819 [internal quotation marks and citations omitted]). "Ordinarily, a process server's affidavit of service constitutes prima facie evidence that the defendant [*2]was validly served" (U.S. Bank, N.A. v Peralta, 142 AD3d 988, 988; see US Bank, N.A. v Schumacher, 172 AD3d 1137, 1137; Fuentes v Espinal, 153 AD3d 500, 501). "'However, when a defendant submits a sworn denial of receipt of service containing specific facts to refute the statements in the affidavit of the process server, the prima facie showing is rebutted and the plaintiff must establish personal jurisdiction by a preponderance of the evidence at a hearing'" (US Bank, N.A. v Schumacher, 172 AD3d at 1138, quoting U.S. Bank, N.A. v Peralta, 142 AD3d at 988-989).

Here, the process server's affidavit of service constituted prima facie evidence of valid service pursuant to CPLR 308 (Wells Fargo Bank, NA v Spaulding, 177 AD3d at 819). However, Giraldo's affidavit in support of his motion, in which he denied that he was served, denied that he ever lived at the address where service was allegedly made, and set forth significant discrepancies between the process server's physical description of him and his actual physical appearance, was sufficient to rebut the process server's affidavit (id. at 819; FV-1, Inc. v Reid, 138 AD3d 922, 923-924; Emigrant Mtge. Co., Inc. v Westervelt, 105 AD3d at 897).

Accordingly, a hearing is warranted on the issue of the validity of service of process upon Giraldo, and we remit the matter to the Supreme Court, Nassau County, for that purpose and a for a new determination of his motion thereafter."